Kilkenny v. Gabriel

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES PRESTON KILKENNY

Plaintiff,

v. Case No. 2:19-cv-3661

Judge George C. Smith

Magistrate Judge Chelsey M. Vascura

RYAN GABRIEL, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, James Preston Kilkenny, an inmate who is proceeding without the assistance of

counsel, brings this civil rights action under 42 U.S.C. § 1983, alleging that the force employed

during his arrest violated his constitutional rights. This matter is before the Court for the initial

screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable

claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it, that is

frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also

McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial

screen, for the reasons that follow, it is RECOMMENDED that Plaintiff be permitted to

proceed on his excessive force claim against Officer Dorr in his individual capacity. It is further

RECOMMENDED that Plaintiff’s remaining claims be DISMISSED for failure to state a claim

upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B).

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF

No. 1.) Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C. §

1915(b)(1).

Plaintiff’s certified trust fund statement reveals that he currently has $4.65 in his prison

account. Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts at

Northern Correctional Facility (Inmate ID 3524841) is DIRECTED to submit to the Clerk of the

United States District Court for the Southern District of Ohio as an initial partial payment, 20%

of the greater of either the average monthly deposits to the inmate trust account or the average

monthly balance in the inmate trust account, for the six-months immediately preceding the filing

of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid.

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The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison

cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s

financial office in Columbus.

I.

According to Plaintiff’s Complaint, on December 26, 2017, the manager and employees

in the loss prevention unit at the Walmart located in Logan, Ohio, contacted the Logan City

Police Department complaining that Plaintiff had engaged in theft. Defendant Officer Ethan

Dorr of the Logan City Police Department responded to the complaints. Plaintiff alleges that as

Officer Dorr approached, he asked Plaintiff to place his hands behind his back. Officer Dorr

then said, “‘Quit resisting arrest,’ while he slammed Plaintiff’s face on the hard (concrete like)

floor . . . .” (Pl.’s Compl., ECF No. 1-5 at PAGEID # 30.) Plaintiff alleges that he told Officer

Dorr, “I’m not resisting arrest” and that he does not fight with police. (Id. at PAGEID # 31.)

Plaintiff further alleges that Officer Dorr’s use of force caused him to lose two teeth, which in

turn caused infections and pain.

In addition to naming Officer Dorr as a Defendant, Plaintiff has named Ryan Gabriel, the

Captain of the Logan City Police Department; the Logan City Police Department; the Walmart

store located in Logan City, Ohio; and three John Doe Defendants, including the manager of and

two employees in the loss prevention unit at the Walmart store located in Logan City, Ohio.

Plaintiff states that he advances his claims against each of these Defendants in both their

individual and official capacities. According to Plaintiff, Defendant Gabriel and the Logan City

Police Department are liable for failing to properly train, supervise, and control Officer Dorr, and

the Walmart store and its employees are liable because they improperly implicated Plaintiff in a

theft that ultimately lead to the use of excessive force. Plaintiff seeks an award of monetary

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damages.

II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which

provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

Further, to properly state a claim upon which relief may be granted, a plaintiff must

satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil

Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under

Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

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demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010) (quoting Haines

v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “‘courts

should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F.

App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III.

It is RECOMMENDED that Plaintiff be permitted to proceed on his excessive force

claim against Officer Dorr in his individual capacity. For the reasons that follow, it is further

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RECOMMENDED that Plaintiff’s remaining claims—discussed in turn below—be

DISMISSED.

A. Plaintiff’s § 1983 Claims Against Walmart and Walmart Employees

Plaintiff has failed to sufficiently plead a claim under 42 U.S.C. § 1983 against Walmart

or its employees. In order to plead a cause of action under § 1983, a plaintiff must plead two

elements: “(1) deprivation of a right secured by the Constitution or laws of the United States (2)

caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of

Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460,

463 (6th Cir. 2006)). Plaintiff’s § 1983 claims against Walmart and the Walmart employees fail

because beyond his conclusory assertions, Plaintiff has failed to plausibly plead any allegations

upon which this Court could rely to conclude that these Defendants acted under the color of state

law. The undersigned therefore RECOMMENDS that Plaintiff’s claims against Walmart and

the John Doe Walmart employees be DISMISSED pursuant to § 1915(e)(2).

B. Plaintiff’s Official-Capacity Claims

Plaintiff also fails to sufficiently allege a claim under 42 U.S.C. § 1983 against Captain

Gabriel and Officer Dorr in their official capacities or the Logan City Police Department.

“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,’ individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir.

2003) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Thus, “[a] suit against an

individual in his official capacity is the equivalent of a suit against the governmental entity.”

Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). “[A] local government may not be sued

under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when

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execution of a government’s policy or custom . . . inflicts the injury that the government as an

entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). A

plaintiff may prove an unconstitutional “policy” or “custom” by demonstrating one of the

following: “(1) the existence of an illegal official policy or legislative enactment; (2) that an

official with final decision making authority ratified illegal actions; (3) the existence of a policy

of inadequate training or supervision; or (4) the existence of a custom of tolerance or

acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)

(citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).

In his Complaint, Plaintiff asserts in a conclusory fashion that Captain Gabriel and the

Logan Police Department failed to “properly train, supervise and control” officers under their

authority and that their deficient training of Officer Dorr resulted in the use of excessive force

upon Plaintiff. However, “[t]he inadequacy of police training only serves as a basis for § 1983

liability ‘where the failure to train amounts to deliberate indifference to the rights of persons

with whom the police come into contact.’” Miller v. Sanilac Cty., 606 F.3d 240, 255 (6th Cir.

2010) (quoting Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008) (additional citations and

quotation marks omitted)). In order to establish deliberate indifference, a plaintiff “‘must show

prior instances of unconstitutional conduct demonstrating that the [official and/or government

entity] has ignored a history of abuse and was clearly on notice that the training in this particular

area was deficient and likely to cause injury.’” Miller, 606 F.3d at 255 (quoting Fisher v.

Harden, 398 F.3d 837, 849 (6th Cir. 2005)). Here, Plaintiff has not plausibly plead any facts

demonstrating the existence of a policy or custom of inadequate training or supervision, that

Captain Gabriel and/or the Logan City Police Department ignored a history of abuse, or that they

were clearly on notice that their training was deficient and likely to lead to the use of excessive

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force. Accordingly, Plaintiff fails to state a Monell claim against Captain Gabriel or Officer Dorr

in their official capacities or the Logan City Police Department. The undersigned therefore

RECOMMENDS that Plaintiff’s official-capacity claims against Captain Gabriel and Officer

Dorr and his claims against the City of Logan Police Department be DISMISSED pursuant to §

1915(e)(2).

C. Plaintiff’s Individual-Capacity Claims Against Captain Gabriel

Plaintiff’s § 1983 claim against Captain Gabriel in his individual capacity also fails. As

set forth above, to plead a cause of action under § 1983, a plaintiff must plead two elements: “(1)

deprivation of a right secured by the Constitution or laws of the United States (2) caused by a

person acting under color of state law.” Hunt, 542 F.3d at 534. To sufficiently plead the second

element, a plaintiff must allege “personal involvement.” Grinter v. Knight, 532 F.3d 567, 575

(6th Cir. 2008) (citation omitted). This is because Ҥ 1983 liability cannot be imposed under a

theory of respondeat superior.” Id. (citation omitted). Thus, to hold a supervisor liable under §

1983, a plaintiff “must show that the official at least implicitly authorized, approved, or

knowingly acquiesced in the unconstitutional conduct . . . .” Everson v. Leis, 556 F.3d 484, 495

(6th Cir. 2009). Plaintiff’s Complaint fails to provide sufficient factual content or context from

which the Court could reasonably infer that Defendant Gabriel was personally involved in any

violation of Plaintiff’s rights or that he in any way authorized, approved, or knowingly

acquiesced in the alleged unconstitutional conduct. Accordingly, it is RECOMMENDED that

the Court DISMISS Plaintiff’s individual-capacity claim against Captain Gabriel pursuant to §

1915(e)(2).

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IV.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No. 1) is GRANTED.

For the reasons set forth above, it is RECOMMENDED that Plaintiff be permitted to proceed

on his individual-capacity claim against Defendant Dorr and that his remaining claims be

DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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